ACT NO. V OF 1908 [21st March 1908] PRELIMINARYma-law.org.pk/pdflaw/CODE OF CIVIL PROCEDURE...

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Transcript of ACT NO. V OF 1908 [21st March 1908] PRELIMINARYma-law.org.pk/pdflaw/CODE OF CIVIL PROCEDURE...

  • Code of Civil Procedure, 1908.

    ACT NO. V OF 1908

    [21st March 1908]

    An Act to consolidate and amend the laws relating to the Procedure of the Courts of Civil

    Judicature.

    WHEREAS it is expedient to consolidate and amend the laws relating to the procedure of

    the Courts of Civil Judicature; It is hereby enacted as follows: -

    PRELIMINARY

    1.-(l) This Act may be cited as the Code of Civil Procedure, 1908.

    (2) It shall come into force on the first day of January 1909.

    1[(3) It extends to the whole of Pakistan.]

    2. In this Act, unless there is anything repugnant in the subject or context,-

    (1) "Code" includes rules:

    (2) "decree" means the formal expression of an adjudication which, so far as regards the

    court expressing it, conclusively determines the rights of the parties which regard to all or

    any of the matters in controversy in the suit and may be either preliminary or final. It

    shall be deemed to include the rejection of a plaint 2[the determination of any question

    within section 144 and an order under rule 60, 98, 99, 101, or 103 of Order XXI] but shall

    not include;

    (a) any adjudication form which an appeal lies as an appeal from an order, or

    (b) any order of dismissal for default.

    Explanation. - A decree is preliminary when further proceedings have to be taken before

    the suit can be completely dispose of. It is final when such adjudication completely

    disposes of the suit. It may be partly preliminary and partly final;

    (3) "Decree-holder" means any person in whose favour a decree has been passed or an

    order capable of execution has been made:

    (4) "District" means the local limits of the jurisdiction of a principal civil Court of

    original jurisdiction (hereinafter called a "District Court"), and includes the local limits of

    the ordinary original civil jurisdiction of a High Court:

  • (5) "Foreign Court" means a Court situate beyond the limits of 1[Pakistan] which has no

    authority in 1[Pakistan] and is not established or continued by 2[the Central Government

    3***]:

    (6) "Foreign judgment" means the judgment of a foreign Court:

    (7) "Government Pleader" Includes any officer appointed by the 4(Provincial

    Government] to perform all or any of the functions expressly imposed by this Code on

    the Government Pleader and also any pleader acting under the directions of the

    Government Pleader :

    (8) "Judge" means the presiding officer of a civil Court:

    (9) "Judgment" means the statement given by the Judge of the grounds of a decree or

    order:

    (10) "Judgment-debtor" means any person against whom a decree has been passed or an

    order capable of execution has been made:

    (11) "Legal representative" means a person who in law represents the estate of a deceased

    person, and includes any person who intermeddles with the estate of the deceased and

    where a party sues or is sued in a representative character the person on whom the estate

    devolves on the death of the party so suing or sued:

    (12) "Mesne profits" of property means those profits which the person in wrongful

    profession of such property actually received or might with ordinary diligence have

    received therefrom, together with interest on such profits but shall not include profits due

    to improvements made by the person in wrongful possession:

    (13) "Movable property" includes growing crops:

    (14) "Order" means the formal expression of any decision of a civil Court which is not a

    decree:

    (15) "Pleader" means any person entitled to appear and plead for another in Court, and

    includes an advocate, a civil and an attorney of a High Court:

    (16) "Prescribed" means prescribed by rules:

    (17) "Public officer" means a person falling under any of the following descriptions,

    namely:

    (a) every Judge;

    (b) [every person in the service of Pakistan].1

  • (c) every commissioned or gazetted officer in the military, 2[naval or airy] forces of

    3[Pakistan while in the service of the State];

    (d) every officer of a Court of Justice whose duty it is, as such officer, to investigate or

    report on any matter of law or fact, or to make, authenticate or keep any document, or to

    take charge or dispose of any property, or to execute any judicial process, or to

    administer any oath, or to interpret, - or to preserve order, in the Court, and every person

    especially authorized by a Court of Justice to perform any of such duties;

    (e) every person who holds any office by virtue of which he is empowered to place or

    keep any person in confinement;

    (f) every officer of 4[the 5[Government] ] whose duty it is, as such officer, to prevent

    offences, to give information of offences, to bring offenders to justice, or to protect the

    public health, safety or convenience;

    (g) every officer whose duty it is, as such officer, to take, receive, keep or expend any

    property on behalf of 4[the 5[Government]], or to make any survey, assessment or

    contract on behalf of '[the 2(Government] 1. or to execute any revenue-process, or to

    investigate, or to report on, any matter affecting the pecuniary interests of 1[the

    2[Government], or to make, authenticate or keep any document relating to the pecuniary

    interests of 1[the [Government] ] or to prevent the infraction of any law for the protection

    of the pecuniary interest of 1[the 2[Government] ]; and

    (h) every officer in the service or pay of 1[the 2[Government]], or remunerated by fees or

    commission for the performance of any public duty:

    (18) "Rules" means rules and forms contained in the First Schedule or made under

    section 122 or section 125.

    (19) "Share in a corporation" shall be deemed to include stock, debenture-stock,

    debentures or bonds; and

    (20) "Signed", save in the case of a judgment or decree, includes stamped.

    3. For the purposes of this Code, the District Court is subordinate to the High Court, and

    every civil Court of' a grade inferior to that of a District Court and every Court of Small

    Causes is subordinate to the High Court and District Court.

    4.-(l) In the absence of any specific provision to the contrary, nothing in this Code shall

    be deemed to limit or otherwise affect any special or local law now in force or any

    special jurisdiction or power conferred, or any special form of procedure prescribed, by

    or under any other law for the time being in force.

    (2) In particular and without prejudice to the generality of the proposition contained in

    subsection (1), nothing in this Code shall be deemed to limit or otherwise

  • affect any remedy which a landholder or landlord may have under any law for the time

    being in force for the recovery of rent of agricultural land from the produce of such land.

    5.-(1) Where any Revenue Courts are governed by the provisions of this Code in those

    matters of procedure upon which any special enactment applicable to them is silent, the

    3[Provincial Government]4 * * * may, by notification in the 5(official Gazette], declare

    that any portions of those provisions which are not expressly made applicable by this

    Code shall not apply to those Courts, or shall only apply to them with such modifications

    as the 3[Provincial Government]*** may prescribe.

    (2) "Revenue Court" in subsection (1) means a Court having jurisdiction under any local

    law to entertain suits or other proceedings relating to the rent, revenue or profits of land

    used for agricultural purposes, but does not include a civil Court having original

    jurisdiction under this Code to try such suits or proceedings as being suits or proceedings

    of a civil nature.

    6. Save in so far as is otherwise expressly provided, nothing herein contained shall

    operate to give any Court jurisdiction over suits the amount or value of the subject-matter

    of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.

    7. The following provisions shall not extend to Courts cons- Provincial Small Cause

    Courts Act, 1887, 1*** or to Courts exercising the jurisdiction of a Court of Small

    Causes Courts 3[under the said Act], that is to say,-

    (a) So much of the body of the Code as relates to-

    (i) Suits excepted from the cognizance of a Court of Small Causes;

    (ii) The execution of decrees in such suits;

    (iii) The execution of decrees against immovable property; and

    (b) The following sections, that is to say,-

    sections 9,

    sections 91 and 92.

    sections 94 and 95 3[far as they authorize or relate to-'

    (i) orders for the attachment of immovable property,

    (ii) injunctions.

    (iii) the appointment of a receiver of immovable property, or

    (iv) the interlocutory orders referred to Li clause (e) of

    section 94] and

    sections 96 to 112 and 115.

    8.-Omitted by the 4.0, 1949.

  • [1908: ACT V]

    Civil Procedure

    (Part I.- Suits in General. Jurisdiction of the Courts and Res judicata)

    PART I

    SUITS IN GENERAL

    JURISDICTION OF THL3 COURTS AND Res Judicata

    9. The Courts shall (subject to the provisions herein cone tamed) have jurisdiction to try

    all suits of a civil nature excepting suits of which their cognizance is either expressly or

    impliedly barred.

    Explanation.- A suit is which the right to property or to an office is contested is a suit of a

    civil nature, notwithstanding that such right ma depend entirely on the decision of

    questions as to religious rites or ceremonies.

    10. No Court shall proceed With the trial of any suit in which the matter in issue is also

    directly and substantially in issue in a previously instituted suit between the same parties,

    or between parties under whom they or any of them claim litigating under the same title

    where such suit is pending in the same or any other Court in 1[Pakistan] having

    jurisdiction to grant the relief claimed, or in any Court beyond the limits of 1[Pakistan]

    established or continued by 2[the Central Government 3***] and having like jurisdiction,

    or before 4[the Supreme Court].

    Explanation.- The pendency of a suit in a foreign Court does not preclude the Courts in

    1[Pakistan] from trying a suit founded on the same cause of action.

    11. No Court shall try suit or issue in which the matter directly and substantially in issue

    has been directly and substantially in issue in a former suit between the same parties, or

    between parties under whom they or any of them claim, litigating under the same title, in

    a Court competent to try such subsequent suit or the suit in which such issue has been

    subsequently raised, and has been heard and finally decided by such Court.

    Explanation I.- The expression "former suit" shall denote a Suit which has been decided

    prior to the suit in question whether or not it was instituted prior thereto.

    Explanation II.- For the purposes of this section, the competence of a Court shall be

    determined irrespective of any provisions as $0 a right of appeal from the decision of

    such Court.

  • Explanation III.-The matter above referred to must in the former suit have been alleged

    by one party and either denied or admitted, expressly, or impliedly by the other.

    Explanation 1V.-Any matter which might and ought to have been made ground of

    defence or attack in such former suit shall be deemed to have been a matter directly and

    substantially in issue -in such suit.

    Explanation V.-Any relief claimed in the plaint, which is not expressly granted by the

    decree, shall, for the purposes of this section, be deemed to have been refused.

    Explanation VI.-Where persons litigate bona fide in respect of a public right or of a

    private right claimed in common for themselves and others, all persons interested in such

    right shall, for the purposes of this section, be deemed to claim under the person so

    litigating.

    12. 1[(1)] Where a plaintiff is preclude by rules from instituting a further suit in respect

    of any particular cause of action, he shall not be entitled to institute a suit in respect of

    such cause of action in any Court to which this Code applies.

    1[(2) Where a person challenges the validity of a judgment, decree or order on the pica of

    fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an

    application to the Court which passed the final judgment, decree or order and not by a

    separate suit.]

    13. A foreign judgment shall be conclusive as to any matter When thereby directly

    adjudicated upon between the same parties or between parties under whom they or any of

    them claim litigating under the same title except;

    (a) Where it has not been pronounced by a Court of competent jurisdiction;

    (b) Where LI has not been given on the merits of the case;

    (c) Where it appears on the face of the proceedings to be founded on an incorrect view of

    international law or a refusal to recognize the law of 2[Pakistan] in cases in which such

    law is applicable;

    (d) Where the proceedings in which the judgment was obtained are opposed to natural

    justice;

    (e) Where it has been obtained by fraud;

    (f) Where it sustains a claim founded on a breach of any law in force in 2[Pakistan).

    14. The Court shall presume, upon the production of any document purporting to be a

    certified copy of a foreign judgment, that such judgment was pronounced by a Court of

    competent jurisdiction, unless the contrary appears on the record; but such presumption

    may be displaced by proving want of jurisdiction.

    15. Every suit shall be instituted in the Court of the lowest grade competent to try it.

  • 16. Subject to the pecuniary or other limitations prescribed by any law, suits;

    (a) for the recovery of immovable property- with or without rent or profits;

    (b) for the partition of Immovable property;

    (c) for foreclosure, sale or redemption In the case of a mortgage of or charge upon

    immovable property,

    (d) for the determination of any other right to or Interest in immovable property;

    (e) for compensation for wrong to immovable property,

    (f) for the recovery of movable property actually under distraint or attachment;

    shall be instituted in the Court within the local limits of whose jurisdiction the property is

    situated '[, or, in the case of suits referred to in- clause (c), at, at the place where the cause

    of action his wholly or partly arisen: -

    Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable

    property held by or on behalf of the defendant may, where the relief sought can be

    entirely obtained through his personal obedience, be instituted either in the Court within

    the local limits of whose jurisdiction the property is situate 1[or, in the case of suits

    referred to in clause (c), at the place where the cause of action has wholly or partly

    arisen) or in the Court within the local limits of whose jurisdiction the defendant actually

    and voluntarily resides, or carries on business, or personally works for gain.

    Explanation.- In this section "property" means property situate in 2[Pakistan].

    17. Where a suit is to obtain relief respecting, or compensation for wrong to immovable

    property situate within the jurisdiction of different Courts, the suit may be instituted in

    any Court within the local limits of whose jurisdiction any portion of the property is

    situate: -

    Provided that, in respect of the value of the subject-matter of the suit, the entire claim is

    cognizable by such Court.

    18.-(1) Where it is alleged to be uncertain within the local limits of the jurisdiction of

    which of two or more Courts any immovable property is situate, any one of those Courts

    may, if satisfied that there is ground for the alleged uncertainty, record a statement to that

    effect and thereupon 1iroceed to entertain and dispose of any suit relating to that

    property, and its decree in the suit shall have the same effect as if the property were

    situate within the-local limits of its jurisdiction:

    Provided that the suit is one with respect to which the Court is competent as regards the

    nature and value of the suit to exercise jurisdiction.

    (2) Where a statement has not been recorded under subs section (1), and an objection is

    taken before an appellate or revisional Court that a decree or order in a suit relating to

    such property was made by a Court not having jurisdiction where the property is situate,

    the appellate or revisional Court shall not allow the objection unless in its opinion there

  • was, at the time of the institution of the suit, no reasonable ground for uncertainty as to

    the Court having jurisdiction with respect thereto and there has been consequent failure

    of justice.

    19. Where a suit is for compensation for wrong done to the person or to movable

    property, if the wrong was done within the local limits of the jurisdiction of one Court

    and the defendant resides, or carries on business, or personally works for gain, within the

    local limits of the jurisdiction of another Court, the suit may be instituted -at the option of

    the plaintiff in either of the said Courts.

    Illustrations

    (a) A, residing in '[Karachi], beats B in 1[Quetta]. B may sue A either in I[Quetta or

    1[Karachi].

    (b) A, residing in [Karachi] published in [Quetta] statements defamatory of B. B may sue

    A either in [Quetta] or in [Karachi].

    20. Subject to the limitations aforesaid, every suit shall be in a Court within the local

    limits of whose jurisdiction.

    (a) the defendant-, or each of the defendants where there are more than one, at the time of

    the commencement of the suit, actually and voluntarily resides, or carries on business, or

    personally works for gain; or

    (b) any of the defendants, where there are more than one, at the time of the

    commencement of the suit, actually and voluntarily resides, or carries on business, or

    personally works for gain, provided that in such case either of the Court is given, or the

    defendants who reside, or carry on business, or personally work as aforesaid, acquiesce in

    such institution; or

    (c) the cause of action, wholly or in part, arises.

    Explanation I.- Where a person has- a one place and also a temporary residence shall be

    deemed to reside at both places in action arising at the place where he residence.

    Explanation II.-A corporation shall be deemed to carry on business at its sole or principal

    office in '[Pakistan] or, in respect of any cause of action arising at any place where it has

    also a subordinate office, at such place.

    Illustrations

    (a) A is a tradesman in [Lahore]. B carries on business in [Karachi]. B, by his agent in

    [Lahore], buys goods of A and requests A to deliver them to the [Pakistan International

    Airways]. A delivers the goods accordingly in [Lahore]. A may sue B for the price of the

  • goods either in [Lahore] where the cause of action has arisen or in [Karachi] where B

    carries on business.

    (b) A resides at [Murree], B at [Lahore], and C at [Karachi]. A, B and C being together at

    [Bahawalpur] B and C make a joint promissory note payable on demand, and deliver it to

    A. A may sue B and C at [Bhawalpur], where the cause of action arose. He may also sue

    them at [Lahore], where B resides, or at [Karachi], where C resides: but in each of these

    cases, if the non-resident defendant objects, the suit cannot proceed without the leave of

    the Court.

    21. No objection as to the place of suing shall be allowed by any appellate or revisional

    Court unless such objection was taken in the Court of first instance at the earliest possible

    opportunity and in all cases where issues are settled at or before such settlement and

    unless there has been a consequent failure of justice.

    22. Where a suit may be instituted in any one.- of two or more Courts and is instituted in

    one of such Courts, any defendant after notice to the other parties, may, at the earliest

    possible opportunity and in all cases where issues are settled at or before such settlement,

    apply to have the suit transferred to another Court, and the Court to which such

    application is made, after considering the objections of the other parties (ii any), shall

    determine in which of the several Courts having jurisdiction be suit shall proceed.

    23. (1) Where the several Courts having jurisdiction are subordinate to the same

    Appellate Court, an application under section 22 shall be made to the Appellate Court.

    (2) Where such Courts are subordinate to different Appellate Courts but to the same High

    Court, the application shall be made to the said High Court.

    (3) Where such Courts arc subordinate to different High Courts, the application shall be

    made to the High Court within the local limits of whose jurisdiction the Court in which

    the suit is brought is situate.

    24.-..(l) On the application of any of the parties and after notice to the

    parties and after hearing such of be heard, or of its own motion without

    such notice, the High Court or the District Court may at any stage-

    (a) transfer any suit, appeal or other proceeding pending before it for

    trial or disposal to any Court subordinate to it and competent to try or

    dispose of the same, or

    (b) withdraw any suit, appeal or other proceeding pending in any Court

    subordinate to it, and

  • (i) try or dispose of the same; or

    (ii) transfer the same for trial or subordinate to it and competent same;

    or

    (iii) retransfer the same for trial or disposal to the Court from which it

    was withdrawn.

    (2) Where any suit or proceeding has been transferred or withdrawn

    under subsection (1) the Court which thereafter tries such suit may,

    subject to any special directions in the case of an order of transfer,

    either retry it or proceed from the point at which it was transferred or

    withdrawn.

    (3) For the purposes of' this section, and Assistant Judges shall be

    deemed to District Court.

    (4) The court trying any suit transferred or withdrawn under this

    section from a Court of Small Causes shall, for the purposes of' such

    suit, be deemed to be a Court of Small Causes,

    124-A.-(1) Where any suit is transferred udder section 22, or any suit, appeal or other

    proceeding is transferred or withdrawn under subsection (1) of section 24 on the

    application of a party, the Court ordering the transfer or withdrawal shall fix a date for

    the appearance of the parties before itself, if the., suit, appeal or other proceeding is to be

    tried or disposed of by itself, or before the Court to which the case is so transferred.

    (2) Where any suit, appeal or other proceeding is transferred from one Court to another,

    otherwise than on the' application of a party, the parties thereto shall appear before the

    Court from which the suit, appeal or other proceeding is to be transferred, on the day

    already fixed for their appearance before that Court, and such Court shall then

    communicate the order of transfer to such parties and direct them to appear before the

    Court to which the suit, appeal or other proceeding is to be transferred, either on the same

    day, or on such earliest day as may be reasonable having regard to the distance at which

    the other Court is located.]"

    25. 1* * * * * *

    INSTITUTION OF SUITS

    26. Every suit shall be instituted by the presentation of a plaint or in such other manner as

    may be prescribed.

  • SUMMONS AND DISCOVERY

    27. Where a suit has been duly instituted, a summons may defendants, be issued to the

    defendant to appear and answer the claim and may be served in manner prescribed.

    28.-(1) A summons may be sent for service in another summons. Province to such Court

    and in such manner as may be prescribed by rules in force in that Province.

    (2) The Court to which summons is sent shall, upon another receipt thereof, proceed as if

    it had been issued by such Court and shall then return the summons to the Court of issue

    together with the record (if any) of its proceedings with regard thereto.

    29. Summonses 2[and other processes] issued by any Civil or

    Revenue Court situates 1[outside] 2[Pakistan] may be sent to the Courts 3[in] 4[Pakistan]

    and served as if they 5[were summonses] issued by such Courts:

    6[Provided that the Courts issuing such summonses [or processes] have been established

    or continued by the authority of the Central Government or that the Provincial

    Government [of the Province in which such summonses or processes are] to be served

    has by notification in the official Gazette declared the provisions of this section to apply

    to 10[such Courts.]

    30. Subject to such conditions and limitations as may be prescribed, the Court may, at

    any. time, either of its own motion or on the application of any party: -

    (a) make such orders as may be necessary or reasonable in all matters relating to the

    delivery and answering of interrogatories, the admission of documents and facts, and the

    discovery, inspection, production, impounding and return of documents or other material

    objects producible as evidence;

    (b) issue summonses to persons whose attendance is required either to give evidence or to

    produce documents or such other objects as aforesaid;

    (c) order any fact to be proved by affidavit.

    31. The provisions in sections 27, 28 and 29 shall apply to summonses to give evidence

    or to produce documents or other material objects.

    32. The Court may compel the attendance of any person to whom a summons has been

    issued under section 30 and for that purpose may-

    (a) issue a warrant for his arrest;

    (b) attach and sell his property;

  • (c) impose a fine upon him not exceeding [two thousand] rupees;

    (d) order him to furnish security for his appearance and in default commit him to [..]

    prison.

    JUDGMENT AND DECREE

    33. The Court. after the case has been heard, shall pronounce judgment, and on such

    judgment a decree shall follow.

    INTEREST

    34.-(1) Where and in so far as a decree is for the payment of money, the Court may, in

    the decree, order interest at such rate as the Court deems reasonable to be paid on the

    principal sum adjudged, from the date of the suit to the date of the decree, in addition to

    any interest adjudged on such principal sum for any period prior to the institution of the

    suit, with further interest at such rate as the Court deems reasonable on the aggregate sum

    so adjudged, from the date of the decree to the date of payment, or to such earlier date as

    the Court thinks fit.

    (2) Where such a decree is silent with respect to the payment of further interest on such

    aggregate sum as aforesaid from the date of the decree to the date of payment or other

    earlier date, the Court shall be deemed to have refused such interest, and a separate suit

    therefore shall not lie.

    3[34.A,-(l') Where the Court is of opinion that a suit was instituted with intent to avoid

    the payment of any public dues payable by the plaintiff or on his behalf, the Court may,

    while dismissing such suit, make an order for payment of interest on' such public dues at

    the rate, of two per cent. above the prevailing bank rate.

    (2) Where the Court is of opinion that the recovery of any public dues from the plaintiff

    was unjustified, the Court may, while disposing of the suit, make an order for payment of

    interest on the amount recovered at the rate of two per cent., about the prevailing bank

    rate.

    Explanation- In this section-

    (a) "bank rate" means the bank rate determined and made public under the provisions of

    the State Bank of Pakistan Act, 1956 (XXXIII of 1956); and

    (b) "public dues" includes the dues of any bank owned by the Federal Government or of

    any corporation or undertaking owned or controlled by the Federal Government or a

    Provincial Government or of any local authority.]

    [34.B. Where and in so far as a decree is for payment of money due to a banking

    company in repayment of a loan advanced by it, the Court shall, in the decree, provide for

  • interest or return, as the case may be, on the judgment debt from the date of decree till

    payment-

    (a) In the case of interest-bearing loans, for interest at the contracted rate or at the rate of

    two percent above the bank rate, whichever is the higher;

    (b) In the case of loans given on the basis of markup in price, lease, hire-purchase or

    service charges, for the contracted rate of mark-up, rental, hire or service charges, as the

    case may be, or at the latest rate of the banking company for similar loans, whichever is

    the higher; and

    (c) in the case of loans given on the basis of participation in profit and loss, for return at

    such rate, not being less than the annual rate of profit for the preceding six months paid

    by the banking company on term deposits of six months, accepted by it on the basis of

    participation in profit and loss, as the Court may consider just and reasonable in the

    circumstances of the case, keeping in view the profit-sharing agreement entered into

    between the banking company and the judgment-debtor when the loan was contracted.

    Explanation.-(1) In this section in clause (a), "bank rate" has the same meaning as in

    section 34-A].

    COSTS

    35.-(l) Subject to such conditions and limitations as may be prescribed, and to the

    provisions of any law for the time being in force, the costs of an incident to all suits shall

    be in the discretion of the Court, and the Courts shall have full power to determine by

    whom or out of what property and to what extent such costs are to be paid, and to give all

    necessary directions for the purposes aforesaid. The fact that the Court has no jurisdiction

    to try the suit shall be no bar to the exercise of such powers.

    (2) Where the Court directs that any costs shall not follow the event, the Court shall state

    its reasons in writing.

    (3) The Courts may give interest on costs at any rate not exceeding six percent per

    annum, and such interest shall be added to the Costs and shall be recoverable as such.

    [35-A.-(l) If in any suit or other proceeding 2[including an execution proceeding)], not

    being an appeal, any party objects to the claim or defence on the ground that the claim or

    defence or any part of it is, as against the objector, false or vexatious to the knowledge of

    the party by whom it has been put forward, and if thereafter, as against the objector, such

    claim or defence is disallowed, abandoned or withdrawn in whole or in part, the. Court, if

    the objection has been taken at the earliest opportunity and if it is satisfied of the justice

    thereof, may, after recording its reasons for holding such claim or defence to be false or

    vexatious, make an order for the payment to the objector by the party by whom such

    claim or defence has been put forward, of costs by way of compensation.

  • (2) No Court shall make any such order for the payment of an amount exceeding

    3[twenty five thousand] rupees or exceeding the limits of its pecuniary jurisdiction,

    whichever amount is less;

    Provided that where the pecuniary limits of the jurisdiction of any Court exercising the

    jurisdiction of a Court of Small Causes under the Provincial Small Cause Courts Act,

    1887, and not being a Court constituted under that Act are less than two hundred and fifty

    rupees, the High Court may empower such Court to award as costs under this section any

    amount not exceeding two hundred and fifty rupees and not exceeding those limits by

    more than one hundred rupees:

    Provided further, that the High Court may limit the amount which any Court or class of

    Courts is empowered to award as costs under this section.

    (3) No person against whom an order has been made under this section shall, by reason

    thereof, be exempted from any criminal liability in respect of any claim or defence made

    by him.

    (4) The amount of any compensation awarded under this section in respect of a false or

    vexatious claim or defence shall be taken into account in any subsequent suit for damages

    or compensation in respect of such claim or defence.]

    --------------------

    PART II

    EXECUTION

    GENERAL

    36. The provisions of this Code relating to the execution of decrees shall, so far as they

    are applicable, be deemed to apply to the execution of orders.

    37. The expression "Court which passed a decree" or words to that effect, shall, in

    relation to the execution of decrees unless there is anything repugnant in the subject or

    context, be deemed to include, -

    (a) Where the decree to be executed has been passed in the exercise of appellate

    jurisdiction, the first instance, and

    (b) Where the Court of first instance has ceased to exist or to have jurisdiction to execute

    it, the Court which, if the suit wherein the decree was passed was instituted at the time of

    making the application for the execution of the decree, would have jurisdiction to try

    such suit.

  • 38. A decree may be executed either by the Court which passed it, or by the Court to

    which it is sent for execution.

    39.-(l) The Court which passed a decree may, on the application of the decree-holder,

    send it for execution to another Court;

    (a) if the person against whom the decree is passed actually and voluntarily resides or

    carries on business, or personally works for gain, within the local limits of the jurisdiction

    of such other Court, or

    (b) if such person has not property within the Local limits of the jurisdiction of the Court

    which passed the decree sufficient to satisfy such decree and has property within the local

    limits of the jurisdiction of such other Court, or

    (c) if the decree directs the sale or delivery of immovable property situate outside the

    local limits of the jurisdiction of the Court which passed it; or

    (d) if the Court which passed the decree considers for any other reason, which it shall

    record in writing, that the decree should be executed by such other Court.

    (2) The Court which passed a decree may of its own motion it for execution to any

    subordinate Court of competent Transfer of decree to Court in another Province. Result

    of execution proceedings to be certified.

    40. Where a decree is sent for execution in another Province, it shall be sent to such

    Court and executed in such manner as may be prescribed by rules in force in that

    Province.

    41. The Court to which a decree is sent for execution shall certify to the Court which

    passed it the fact of such execution, or where the former Court fails to execute the same

    the circumstances attending such failure.

    42.-1[(1)] The Court executing a decree sent to it shall have the same powers in executing

    such decree as if it had been passed Court in by itself. All persons disobeying or

    obstructing the execution of the decree shall be punishable by such Court in the same

    manner act if it had passed the decree. And its order in executing such decree shall be

    subject to the same rules in respect of appeal as if the decree had been passed by itself.

    (2) Without prejudice to the generality of the foregoing provision, the Court executing a

    decree sent to it shall have the following powers, namely:-

    (a) power under section 39 to transfer the decree to another Court, if necessary;

    (b) power under subsection (1) of section 50 to permit execution to proceed against the

    legal representatives of a deceased judgment-debtor;

    (c) power under section 152 to correct clerical or arithmetical errors;

    (d) power under rule 16 of Order XXI to recognize the assignment of a decree;

  • (e) power under sub-rule (2) of rule 50 of Order XXI to grant leave to a decree-holder to

    proceed against a person not already recognized as a partner in a firm in an execution

    proceeding against the firm;

    (f) power under clause (b) of sub-rule (1) of rule 53 of Order XXI to give notice of

    attachment of decree passed by another Court.]

    43. Any decree passed by a civil Court established in any 2[area] in 3[Pakistan] to which

    the provisions relating to execution do not extend [..] may, lilt cannot he

    executed within the jurisdiction of the Court by which it was passed, be executed in

    manner herein provided within the jurisdiction of any Court in 5[Pakistan].

    44.-[Omitted by Ordinance (27 of 1981), Second Sched., item 46(5)].

    5(44.A.-(1) Where a certified copy of a decree of any of the superior Courts of the United

    Kingdom or any reciprocating territory has been filed in a District Court, the decree may

    be executed in 3[Pakistan] as if it had been passed by the District Court.

    (2) Together with the certified copy of the decree shall be filed a certificate from such

    superior Court stating the extent, if any, to which the decree has been satisfied or adjusted

    and such certificate shall, for the purposes of proceedings under this section, be

    conclusive proo1 of the extent of such satisfaction or adjustment.

    (3) The provisions of section 47 shall as from the filing of the certified copy of the decree

    apply to the proceedings of a District Court executing a decree under this section, and the

    District Court shall refuse execution of any such decree, if it is shown to the satisfaction

    of the Court that the decree falls within any of the exceptions specified in clauses (a) to

    (f) of section 13.

    Explanation 1.-"Superior Court" with' reference to the United Kingdom, means the High

    Court in England, the Court of Session in Scotland, the High Court in Northern Ireland,

    the Court of Chancery of the County Palatine of Lancaster and the Court of Chancery of

    the County Palatine of Durham.

    Explanation 2.-'4Reciprocating territory" means 1[the United Kingdom and such other

    country or territory as] the 3[Central Government) may, from time to time, by

    notification in the 3[official Gazette], declare [to be reciprocating territory for the

    purposes of this section; and "superior Courts", with reference to any such territory,

    means such Courts as may be specified in the said notification.

    Explanation 3.-."Decree", with reference to a superior Court, means any decree or

    judgment of such Court under which a sum of money is payable, not being a sum payable

    in respect of taxes or other charges of a like nature or in respect of a fine or other penalty,

    and

    (a) With reference to superior Courts in the United Kingdom, includes judgments given

    and decrees made in any Court in appeals against , such decrees or judgments, but

  • (b) In no case includes an arbitration award, even if such award is enforceable as a decree

    or judgment.]

    45. Execution of decrees in foreign territory.-[Omitted by Ordinance (27 of 1981),

    Second Sched., item 46(5) ].

    46.-(l) Upon the application of the decree-holder the Court which passed the decree may,

    whenever it thinks fit, issue a precept to any other Court which would be competent to

    execute such decree to attach any property belonging to the judgment-debtor and

    specified in the precept.

    (2) The Court to which a precept is sent shall proceed to attach the property in the manner

    prescribed in regard to the attachment of property in execution of a decree:

    Provided that no attachment under a precept shall continue for more than two months

    unless the period of attachment is extended by an order of the Court which passed the

    decree or unless before the determination of such attachment the decree has been

    transferred to the Court by which the attachment has been made and the decree-holder

    has applied for an order for the sale of such property.

    QUESTIONS TO BE DETERMINED BY COURT EXECUTING DECREE

    47.-(l) All questions arising between the parties to the suit in which the decree was

    passed, or their representatives, and relating to the execution, discharge or satisfaction of

    the decree, shall be determined by the Court executing the decree and not by a separate

    suit.

    (2) The Court may, subject to any objection as to limitation or jurisdiction, treat a

    proceeding under this section as a suit or a suit as a proceeding and may, if necessary,

    order payment of any additional court-fees.

    (3) Where a question arises as to whether any person is or is representative of a party,

    such question shall, for the purpose of this section, be determined by the Court.

    Explanation.- For the purposes of this section, a plaintiff whose suit has been dismissed

    and a defendant against whom a suit has been dismissed, are parties to the suit.

    LIMIT OF TIME FOR EXECUTION

    148....(1) Where an application to execute a decree not being a decree granting an

    injunction has been made, no order for the execution of the same decree shall be made

    upon any fresh application presented after the expiration of [six] years from.

  • (a) the date of the decree sought to be executed, or

    (b) where the decree or any subsequent order directs any payment of money or the

    delivery of any property to be made at a certain date or at recurring periods, the date of

    the default in making the payment or delivery in respect of which the applicant seeks to

    execute the decree.

    (2) Nothing in this section shall be deemed-

    (a) to preclude the Court from ordering the execution of a decree upon an application

    presented after the expiration of the said term of '[six] years, where the judgment-debtor

    has, by fraud or force, prevented the execution of the decree at some time within [six]

    years immediately before the date of the application;

    or

    (b) to limit or otherwise affect the operation of article 2[83 of the First Schedule to the

    Limitation Act, 1908].

    TRANSFER FEES AND LEGAL REPRESENTATIVES:

    49. Every transferee of a decree shall bold the same subject to the equities (if any) which

    the judgment-debtor might have enforced against the original decree-bolder.

    50.-(l) Where a judgment-debtor dies before the decree has been fully satisfied;

    the holder of the decree may apply to the Court which passed it to execute the same

    against the legal Representative of the deceased.

    (2) Where the decree is executed against such legal representative, he shall be liable only

    to the extent of the property of the deceased which has come to his hands and has not

    been duty disposed of; and, for the purpose of ascertaining such liability, the Court

    executing the decree may, of its own motion or on the application of the decree holder,

    compel such legal Representative to produce such accounts as it thinks fit.

    PROCEDURE IN EXECUTION

    51.-Subject to such conditions and limitations as may be prescribed, the Court may, on

    the application of the decree-holder order execution of the decree-

    (a) by delivery of any property specifically decreed;

    (b) by attachment and sale or by sale without attachment of any property ;

    (c) by arrest and detention in prison;

    (d) by appointing a receiver; or

    (e) in such other manner as the nature of the relief granted may require.

  • [Provided that 2[***] execution by detention in prison shall not be ordered unless, after

    giving the judgment debtor an opportunity of showing cause why he should not be

    committed to prison, the Court, for reasons recorded in writing, is satisfied:-

    (a) that the judgment-debtor, with the object or effect of obstructing or delaying the

    execution of the decree,-.

    (i) is likely to abscond or leave the local limits of the jurisdiction of the Court; or

    (ii) has, after the institution of the decree was passed, dishonestly transferred, concealed,

    or removed any part committed any other act of to his property ; or

    (b) that the judgment-debtor has, or has had date of the decree, the means to pay the

    decree or some substantial part thereof or neglects or has refused or neglected same ; or

    (c) that the decree is for a sum for which the judgment debtor was bound in a fiduciary

    capacity to account.

    Explanation - In the calculation of the means of the judgment-debtor for the purposes of

    clause (b), there shall be left out of account any property which by or under any law or

    custom having the force of 1~w for the time being in force, is exempt from attachment in

    execution of the decree].

    52.-(l) Where a decree is passed against a party as the legal representative of a deceased

    person, and the decree is for the payment of money out of the property of the deceased, it

    may be executed by the attachment and sale of any such property.

    (2) Where no such property remains In the possession of the judgment-debtor and he fails

    to satisfy the Court that he has duly applied such property of the deceased as is proved to

    have come into his possession, the decree may be executed against the judgment debtor

    to the extent of the property in respect of which he has failed so to satisfy the Court in the

    same manner as if they decree had been against him personally.

    53. For the purposes of section 50 and section 52, property in the hands of a son or other

    descendant which is liable under Hindu law for the payment of the debt, of a deceased

    ancestor, in respect of which a decree has been passed, shall be deemed to be property of

    the deceased which has come to the hands of the son or other descendant as his legal

    representative.

    A

    54. Where the decree is for the partition of an undivided estate assessed to the payment of

    revenue to '[the '[Government]) or for the separate possession of a share of such as estate,

    the partition of the estate or the separation of the share shall be made by the Collector or

    any gazetted subordinate of the Collector deputed by him in this behalf, in accordance

  • with the law (if any) for the time being in force relating to the partition, or the separate

    possession of shares, of such estates.

    ARREST AND DETENTION

    55.--(l) A judgment-debtor may be arrested in execution of a decree at any hour and on

    any day, and shall, as soon as practicable, be brought before the Court 3[which may make

    an order for his detention in prison to suffer simple imprisonment for a period not

    exceeding one year;]

    Provided, firstly, that, for the purpose of making an arrest under this section, no dwelling

    house shall be entered after sunset and before sunrise;

    Provided, secondly, that no outer-door of a dwelling-house shall be broken open unless

    such dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any

    way present access thereto, but when the officer authorized to make the arrest has duly

    gained access to any dwelling-house, he may break open the door of any room in which

    be has reason to believe the judgment-debtor is to be found;

    Provided, thirdly, that if the room ii in the actual occupancy of a woman who is not the

    Judgement debtor and who according to the customs of the country does not appear in

    public, the officer authorized to make the arrest shall give notice to her that she is at

    liberty to withdraw, and, after allowing a reasonable time for her to withdraw and giving

    her reasonable facility for withdrawing, may enter the room for the purpose of making

    the arrest;

    Provided fourthly, that, where the decree in execution of which a judgment-debtor is

    arrested, is a decree for the payment of

    and the judgment-debtor pays the amount of the decree and the costs of the arrest to the

    officer arresting him, such officer shall at once release him;

    (2) The l[Provincial Government] may by notification in the 2[official Gazette], declare

    that any person or class of persons whose arrest might be attended with danger or

    inconvenience to the public shall not be liable to arrest in execution of a decree otherwise

    than in accordance with such procedure as may be prescribed by the [Provincial

    Government] in this behalf.

    3[(3) A judgment-debtor detained in prison under sub section (1) shall not, merely by

    reason of undergoing such imprisonment, be discharged from his liability under the

    decree, but he shall not be liable to be re-arrested under the decree in execution of which

    he was so detained in prison.]

  • 56. Notwithstanding anything in this Part, the Court the arrest or detention in the 4[* *]

    prison execution of a decree for the payment of money.

    57. [* * * * * * *]

    58. Every person detained in prison in execution of decree shall be released from such

    detention, before the expiry of the period of detention, if-

    (a) the amount mentioned in the warrant for his detention is paid to the officer in charge

    of the prison; or

    (b) the decree against him is otherwise fully satisfied; or

    (c) the person on whose application he has been detained so requests;

    Provided that he shall not be released from such detention without the order of the Court.]

    59. [* * * * * * * *]

    60. (1) The following property is liable to attachment and sale in execution of a decree,

    namely, lands houses or other buildings, goods, money, bank-notes, cheques, bills of

    exchange, hundis, promissory notes, Government securities, bonds or other securities for

    money, debts, shares in a corporation and, save as hereinafter mentioned, all 4other

    saleable property, movable or immovable, belonging to the judgment-debtor, or over

    which or the profits of which. be has a disposing power which he may exercise for his

    own benefit, whether the same be held in the name of the judgment-debtor or by another

    person in trust of him or on his behalf:

    Provided that the following particulars shall not be liable to such attachment or sale,

    namely:-

    (a) the necessary wearing-apparel, cooking vessels, beds and bedding of the judgment-

    debtor, his wife and children, and such personal ornaments as. in accordance with

    religious usage, cannot be parted with any woman;

    (b) tools of artisans arid, where the judgment-debtor is art agriculturist, his implements of

    husbandry and such cattle and seed-grain as may, in the opinion of the Court, be

    necessary to enable him to earn his livelihood as such, and such portion of agricultural

    produce, or of any class of agricultural produce as may have been declared to be free

    from liability under the provisions of the next following section;

    (c) houses and other buildings (with the materials ahd the sizes thereof and the land

  • immediately appurtenant thereto and necessary for their enjoyment) belonging to an

    agriculturist and cccupied by him;

    (d) books of accounts;

    (e) a mere right to sue for damages ;

    (f) any right of personal service ;

    (g) stipends and gratuities allowed to 2[pensioners of the 3[Government], or payable out

    of any service family and the costs of the arrest to the officer arresting him, such office

    shall at once release him.

    (h) the wages of labourers and domestic servants, whether payable in money or

    in kind;

    (l) Salary to the extent of the first hundred rupees and one half the remainder;

    Provided that where such salary is the salary of a 6[servant of the State] or a servant of a

    railway 7* * * or local authority and the whole or any part of the portion of such salary

    liable to attachment has been under attachment, whether continuously or intermittently

    for a total period of twenty-four months, such portion shall be exempt from attachment

    until the expiry of a further period of twelve months and, where such attachment has been

    made in execution of one and the same decree, shall be finally exempt from attachment in

    execution of that decree ;]

    (j) the pay and allowances of persons to whom the 8[Pakistan Army Act, 1952],

    9* * *applies]. [or of persons other than commissioned officers to whom the 1[Pakistan

    Navy Ordinance, 1961 (XXXV of 1961) applies];

    (k) all compulsory deposits and other sums in or derived from any fund to which the

    Provident Funds Act [1925], for the time being applies in so far as they are declared by

    the said Act not to be liable to attachment;

    (l) any allowance forming part of the emoluments of any [servant of the State] or of any

    servant of a railway 4 * * * or local authority which the [appropriate Government] may

    by notification in the [official Gazette] declare to be exempt from attachment, and any

    subsistence grant or allowance made to 7[any such servant] while under suspension; (in)

    an expectancy of succession by survivorship or other, merely contingent or possible right

    or interest;

    (n) A right to future maintenance;

    (o) Any allowance declared by [any Pakistan law] to be exempt from liability to

    attachment or sale in execution of a decree; and

  • (p) Where the judgment debtor is a person liable for the pays merit of land revenue,

    any movable property which, under any law for the time being applicable to him,

    is exempt from sale for the recovery of an arrear of such revenue.

    [Explanation 1] The particulars mentioned in clauses (g), (h), (i), (j), (l) and (o) are

    exempt from attachment or sale whether before or after they are actually payable, [and in

    the case of salary other than salary of a [servant of the State] or a servant of a railway 1

    *** or local authority the attachable portion thereof is exempt from attachment until it is

    actually payable].

    2[Explanation 2.-In clauses (h) and (1), "salary" means the total monthly emoluments,

    excluding any allowance declared exempt from attachment under the provisions of clause

    (1), derived by a person from his employment whether on duty or on leave.]

    3[Explanation 3 -.40 clause (I) "appropriate Government" means-

    (i) As respects any 4[person] in the service of the Government, or any servant [of railway

    or] cantonment authority or the port authority of a port, the Central Government:

    (iii) As respects any other 7[servant of the State] or a servant of any local authority, the

    Provincial Government].

    (2) Nothing in this section shall be deemed-.

    to exempt houses and other buildings (with the materials and the sites thereof and the

    lands immediately appurtenant thereto and necessary for their enjoyment) from

    attachment or sale in execution of decrees for rent of any such house, building, site or

    land,

    61. The [Provincial Government] * * may. by general or special order published in the

    2fofficial Gazette], declare that such portion of agricultural produce, or of any class of

    agriculture produce, as may appear to the 10[Provincial Government] to be for the

    purpose of providing until the next harvest for the due cultivation of the land and for the

    support judgment-debtor and his family, shall, in the case of all turists or of any class of

    agriculturist be exempted from to attachment or sale in execution of a decree.

    62. (1) No person executing any process under this directing or authorizing seizure

    of movable property shall any dw1diling.house after sunset and before sunrise.

    (2) No outer-door of a dwelling-house shall be broken open unl~ss such dwelling-house

    is in the occupancy of the judgment. debtor and he refuses or in any way prevents access

    thereto, but when the person executing any such process has duly gained access to any

    dwelling-house, he may break open the door of any room in which he has reason to

    believe any such property to be.

  • (3) Where a room in a dwelling-house is in the actual occuo pancy of a woman who,

    according to the customs of the country does not appear in public, the person executing

    the process shall give notice to such woman that she is at liberty to withdraw ; and, after

    allowing reasonable time for her to withdraw and giving her reasonable facility for

    withdrawing, he may enter such room for the purpose, of seizing the property, using at

    the same time every precaution, consistent with these provisions, to prevent its

    clandestine removal.

    63.-41) Where property not in the custody of any Court is under attachment in execution

    of decrees of more Courts than one, the Court which shall receive or realize such property

    and shall determine any claim thereto and any objection to the attachment thereof shall be

    the Court of highest grade, or, where there is no difference in grade between such Courts,

    the Court under whose decree the property was first attached.

    (2) Nothing in this section shall be deemed to invalidate any proceeding taken by a Court

    executing one of such decrees.

    64. Where an attachment has been made, any private transfer or delivery of the property

    attached or of any interest therein and any payment to the judgment-debtor of any debt,

    dividend or other monies contrary to such attachment, shall be void as against all claims

    enforceable under the attachment.

    Explanation: For the purposes of this section, claims enforce under an attachment include

    claims for the rateable distribution of assets.

    65. Where immovable property is sold in execution of a decree and such sale has become

    absolute, the property shall be deemed to have vested in the purchaser from the time

    when the property is sold and not from the time when the sale becomes absolute.

    66. (l) No suit shall be maintained against any person claiming title under a purchase

    certified by the Court in such manner as may be prescribed on the ground that the

    purchase was made on behalf of the plaintiff or on behalf of some one through whom the

    plaintiff claims.

    (2) Nothing in this section shall bar a suit to obtain a declaration that the name of any

    purchaser certified as aforesaid was inserted in the certificate fraudulently or without the

    consent of the real purchaser, or interfere with the right of a third person to proceed

    against that property, though ostensibly sold to the certified purchaser, on the ground that

    it is liable to satisfy a claim of such third person against the real owner,

    67.--{l) The 2[Provincial Government] may by notification in the 4fothcial Gazette],

    make rules for any local area imposing conditions in respect of the sale of any class of

  • interest in land in executing of decrees for the payment of money, where such interests

    are so uncertain or undetermined as in the opinion of the 2[Provincial Government], to

    make it impossible to fix their value.

    [(2) When on the date on which this Code came into operation in any local area, any

    special rules as to sale of land in execution of decrees were in force therein, the

    2[Provincial Government] may, by notification in the 4[official Gazette] declare such

    rules to be in force, or may, by a like notification, modify the same.

    Every notification issued in the exercise of the powers conferred by this subsection shall

    set out the rules so continued or modified]

    DELEGATION TO COLLECTOR OF POWER TO EXECUTE DECREES

    AGAINST IMMOVABLE PROPERTY

    68. The 2[Provincial Government] may declare by notification in the 4[official Gazette]

    that in any local area the execution of decrees in cases in which a Court has ordered any

    immovable property to be sold, or the execution of any particular kind of such decrees, or

    the execution of decrees ordering the sale of any particular kind of, or interest in

    immovable property, shall be transferred to the Collector.

    69. The provisions set forth in the Third Schedule shall apply to all cases in which the

    execution of a decree has been transferred under the last preceding section.

    70. (l) The 2[Provincial Government] may make rules consistent with the aforesaid

    provisions-

    (a) for the transmission of the decree from the Court to the Collector, and for regulating

    the procedure of the Collector and his subordinates in executing the same, and for re-

    transmitting the decree from the Collector to the Court;

    (d) By appointing a receiver; or

    (e) In such other manner as the nature of the relief granted may require.

    [Provided that 2[***] execution by detention in prison shall not be ordered unless, after

    giving the judgment debtor an opportunity of showing cause why he should not be

    committed to prison, the Court, for reasons recorded in writing, is satisfied:-

    (a) that the judgment-debtor, with the object or effect of obstructing or delaying the

    execution of the decree,-.

    (i) is likely to abscond or leave the local limits of the jurisdiction of the Court; or

  • (ii) has, after the institution of the decree was passed, dishonestly transferred, concealed,

    or removed any part committed any other act of to his property ; or

    (b) that the judgment-debtor has, or has had date of the decree, the means to pay the

    decree or some substantial part thereof or neglects or has refused or neglected same ; or

    (c) that the decree is for a sum for which the judgment debtor was bound in a fiduciary

    capacity to account.

    Explanation - In the calculation of the means of the judgment-debtor for the purposes of

    clause (b), there shall be left out of account any property which by or under any law or

    custom having the force of 1~w for the time being in force, is exempt from attachment in

    execution of the decree].

    52.-(l) Where a decree is passed against a party as the legal representative of a deceased

    person, and the decree is for the payment of money out of the property of the deceased, it

    may be executed by the attachment and sale of any such property.

    (2) Where no such property remains In the possession of the judgment-debtor and he fails

    to satisfy the Court that he has duly applied such property of the deceased as is proved to

    have come into his possession, the decree may be executed against the judgment debtor

    to the extent of the property in respect of which he has failed so to satisfy the Court in the

    same manner as if they decree had been against him personally.

    53. For the purposes of section 50 and section 52, property in the hands of a son or other

    descendant which is liable under Hindu law for the payment of the debt, of a deceased

    ancestor, in respect of which a decree has been passed, shall be deemed to be property of

    the deceased which has come to the hands of the son or other descendant as his legal

    representative.

    A

    54. Where the decree is for the partition of an undivided estate assessed to the payment of

    revenue to '[the '[Government]) or for the separate possession of a share of such as estate,

    the partition of the estate or the separation of the share shall be made by the Collector or

    any gazetted subordinate of the Collector deputed by him in this behalf, in accordance

    with the law (if any) for the time being in force relating to the partition, or the separate

    possession of shares, of such estates.

    ARREST AND DETENTION

    55.--(l) A judgment-debtor may be arrested in execution of a decree at any hour and on

    any day, and shall, as soon as practicable, be brought before the Court 3[which may make

  • an order for his detention in prison to suffer simple imprisonment for a period not

    exceeding one year;]

    Provided, firstly, that, for the purpose of making an arrest under this section, no dwelling

    house shall be entered after sunset and before sunrise;

    Provided, secondly, that no outer-door of a dwelling-house shall be broken open unless

    such dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any

    way present access thereto, but when the officer authorized to make the arrest has duly

    gained access to any dwelling-house, he may break open the door of any room in which

    be has reason to believe the judgment-debtor is to be found;

    Provided, thirdly, that if the room ii in the actual occupancy of a woman who is not the

    Judgement debtor and who according to the customs of the country does not appear in

    public, the officer authorized to make the arrest shall give notice to her that she is at

    liberty to withdraw, and, after allowing a reasonable time for her to withdraw and giving

    her reasonable facility for withdrawing, may enter the room for the purpose of making

    the arrest;

    Provided fourthly, that, where the decree in execution of which a judgment-debtor is

    arrested, is a decree for the payment of money and the judgment-debtor pays the amount

    of the decree and the costs of the arrest to the officer arresting him, such officer shall at

    once release him;

    (2) The l[Provincial Government] may by notification in the 2[official Gazette], declare

    that any person or class of persons whose arrest might be attended with danger or

    inconvenience to the public shall not be liable to arrest in execution of a decree otherwise

    than in accordance with such procedure as may be prescribed by the [Provincial

    Government] in this behalf.

    3[(3) A judgment-debtor detained in prison under sub section (1) shall not, merely by

    reason of undergoing such imprisonment, be discharged from his liability under the

    decree, but he shall not be liable to be re-arrested under the decree in execution of which

    he was so detained in prison.]

    61. Notwithstanding anything in this Part, the Court the arrest or detention in the 4[* *]

    prison execution of a decree for the payment of money.

    62. [* * * * * * *]

    63. Every person detained in prison in execution of decree shall be released from such

    detention, before the expiry of the period of detention, if-

    (a) the amount mentioned in the warrant for his detention is paid to the officer in charge

    of the prison; or

  • (b) the decree against him is otherwise fully satisfied; or

    (c) the person on whose application he has been detained so requests;

    Provided that he shall not be released from such detention without the order of the Court.]

    64. [* * * * * * * *]

    65. (1) The following property is liable to attachment and sale in execution of a decree,

    namely, lands houses or other buildings, goods, money, bank-notes, cheques, bills

    of exchange, hundis, promissory notes, Government securities, bonds or other securities

    for money, debts, shares in a corporation and, save as hereinafter mentioned, all 4other

    saleable property, movable or immovable, belonging to the judgment-debtor, or over

    which or the profits of which. be has a disposing power which he may exercise for his

    own benefit, whether the same be held in the name of the judgment-debtor or by another

    person in trust of him or on his behalf:

    Provided that the following particulars shall not be liable to such attachment or sale,

    namely:-

    (a) the necessary wearing-apparel, cooking vessels, beds and bedding of the judgment-

    debtor, his wife and children, and such personal ornaments as. in accordance with

    religious usage, cannot be parted with any woman;

    (b) tools of artisans arid, where the judgment-debtor is art agriculturist, his implements of

    husbandry and such cattle and seed-grain as may, in the opinion of the Court, be

    necessary to enable him to earn his livelihood as such, and such portion of agricultural

    produce, or of any class of agricultural produce as may have been declared to be free

    from liability under the provisions of the next following section;

    (c) houses and other buildings (with the materials ahd the sizes thereof and the land

    immediately appurtenant thereto and necessary for their enjoyment) belonging to an

    agriculturist and cccupied by him;

    (d) books of accounts;

    (e) a mere right to sue for damages ;

    (f) any right of personal service ;

  • (g) stipends and gratuities allowed to 2[pensioners of the 3[Government], or payable out

    of any service family and the costs of the arrest to the officer arresting him, such office

    shall at once release him.

    (i) the wages of labourers and domestic servants, whether payable in money or

    in kind;

    (l) Salary to the extent of the first hundred rupees and one half the remainder;

    Provided that where such salary is the salary of a 6[servant of the State] or a servant of a

    railway 7* * * or local authority and the whole or any part of the portion of such salary

    liable to attachment has been under attachment, whether continuously or intermittently

    for a total period of twenty-four months, such portion shall be exempt from attachment

    until the expiry of a further period of twelve months and, where such attachment has been

    made in execution of one and the same decree, shall be finally exempt from attachment in

    execution of that decree ;]

    (k) the pay and allowances of persons to whom the 8[Pakistan Army Act, 1952],

    9* * *applies]. [or of persons other than commissioned officers to whom the 1[Pakistan

    Navy Ordinance, 1961 (XXXV of 1961) applies];

    (k) all compulsory deposits and other sums in or derived from any fund to which the

    Provident Funds Act [1925], for the time being applies in so far as they are declared by

    the said Act not to be liable to attachment;

    (l) any allowance forming part of the emoluments of any [servant of the State] or of any

    servant of a railway 4 * * * or local authority which the [appropriate Government] may

    by notification in the [official Gazette] declare to be exempt from attachment, and any

    subsistence grant or allowance made to 7[any such servant] while under suspension; (in)

    an expectancy of succession by survivorship or other, merely contingent or possible right

    or interest;

    (n) A right to future maintenance;

    (o) Any allowance declared by [any Pakistan law] to be exempt from liability to

    attachment or sale in execution of a decree; and

    (p) Where the judgment debtor is a person liable for the pays merit of land revenue,

    any movable property which, under any law for the time being applicable to him,

    is exempt from sale for the recovery of an arrear of such revenue.

    [Explanation 1] The particulars mentioned in clauses (g), (h), (i), (j), (l) and (o) are

    exempt from attachment or sale whether before or after they are actually payable, [and in

    the case of salary other than salary of a [servant of the State] or a servant of a railway 1

  • *** or local authority the attachable portion thereof is exempt from attachment until it is

    actually payable].

    2[Explanation 2.-In clauses (h) and (1), "salary" means the total monthly emoluments,

    excluding any allowance declared exempt from attachment under the provisions of clause

    (1), derived by a person from his employment whether on duty or on leave.]

    3[Explanation 3 -.40 clause (I) "appropriate Government" means-

    (i) As respects any 4[person] in the service of the Government, or any servant [of railway

    or] cantonment authority or the port authority of a port, the Central Government:

    (iii) As respects any other 7[servant of the State] or a servant of any local authority, the

    Provincial Government].

    (2) Nothing in this section shall be deemed-.

    to exempt houses and other buildings (with the materials and the sites thereof and the

    lands immediately appurtenant thereto and necessary for their enjoyment) from

    attachment or sale in execution of decrees for rent of any such house, building, site or

    land,

    61. The [Provincial Government] * * may. by general or special order published in the

    2fofficial Gazette], declare that such portion of agricultural produce, or of any class of

    agriculture produce, as may appear to the 10[Provincial Government] to be for the

    purpose of providing until the next harvest for the due cultivation of the land and for the

    support judgment-debtor and his family, shall, in the case of all turists or of any class of

    agriculturist be exempted from to attachment or sale in execution of a decree.

    62. (1) No person executing any process under this directing or authorizing seizure

    of movable property shall any dw1diling.house after sunset and before sunrise.

    (2) No outer-door of a dwelling-house shall be broken open unless such dwelling-house

    is in the occupancy of the judgment. debtor and he refuses or in any way prevents access

    thereto, but when the person executing any such process has duly gained access to any

    dwelling-house, he may break open the door of any room in which he has reason to

    believe any such property to be.

    (3) Where a room in a dwelling-house is in the actual occupancy of a woman who,

    according to the customs of the country does not appear in public, the person executing

    the process shall give notice to such woman that she is at liberty to withdraw ; and, after

    allowing reasonable time for her to withdraw and giving her reasonable facility for

    withdrawing, he may enter such room for the purpose, of seizing the property, using at

    the same time every precaution, consistent with these provisions, to prevent its

    clandestine removal.

    63.-41) Where property not in the custody of any Court is under attachment in execution

  • of decrees of more Courts than one, the Court which shall receive or realize such property

    and shall determine any claim thereto and any objection to the attachment thereof shall be

    the Court of highest grade, or, where there is no difference in grade between such Courts,

    the Court under whose decree the property was first attached.

    (2) Nothing in this section shall be deemed to invalidate any proceeding taken by a Court

    executing one of such decrees.

    64. Where an attachment has been made, any private transfer or delivery of the property

    attached or of any interest therein and any payment to the judgment-debtor of any debt,

    dividend or other monies contrary to such attachment, shall be void as against all claims

    enforceable under the attachment.

    Explanation: For the purposes of this section, claims enforce under an attachment include

    claims for the rateable distribution of assets.

    65. Where immovable property is sold in execution of a decree and such sale has become

    absolute, the property shall be deemed to have vested in the purchaser from the time

    when the property is sold and not from the time when the sale becomes absolute.

    66. (l) No suit shall be maintained against any person claiming title under a purchase

    certified by the Court in such manner as may be prescribed on the ground that the

    purchase was made on behalf of the plaintiff or on behalf of some one through whom the

    plaintiff claims.

    (2) Nothing in this section shall bar a suit to obtain a declaration that the name of any

    purchaser certified as aforesaid was inserted in the certificate fraudulently or without the

    consent of the real purchaser, or interfere with the right of a third person to proceed

    against that property, though ostensibly sold to the certified purchaser, on the ground that

    it is liable to satisfy a claim of such third person against the real owner,

    67.--{l) The 2[Provincial Government] may by notification in the 4fothcial Gazette],

    make rules for any local area imposing conditions in respect of the sale of any class of

    interest in land in executing of decrees for the payment of money, where such interests

    are so uncertain or undetermined as in the opinion of the 2[Provincial Government], to

    make it impossible to fix their value.

    [(2) When on the date on which this Code came into operation in any local area, any

    special rules as to sale of land in execution of decrees were in force therein, the

    2[Provincial Government] may, by notification in the 4[official Gazette] declare such

    rules to be in force, or may, by a like notification, modify the same.

  • Every notification issued in the exercise of the powers conferred by this subsection shall

    set out the rules so continued or modified]

    DELEGATION TO COLLECTOR OF POWER TO EXECUTE DECREES

    AGAINST IMMOVABLE PROPERTY

    71. The 2[Provincial Government] may declare by notification in the 4[official Gazette]

    that in any local area the execution of decrees in cases in which a Court has ordered any

    immovable property to be sold, or the execution of any particular kind of such decrees, or

    the execution of decrees ordering the sale of any particular kind of, or interest in

    immovable property, shall be transferred to the Collector.

    (3) Nothing in this section affects any right of [the 2[Government].

    RESISTANCE TO EXECUTION

    [74.-(l) Where the Court is satisfied that the holder of a decree for the possession of

    property or a purchaser of property sold in execution of a decree has been resisted or

    obstructed in obtaining possession of the property by the judgment-debtor or any other

    person on his behalf and that such resistance or obstruction was without any just cause,

    the Court may, at the instance of the decree holder or the purchaser, order the judgment-

    debtor or such other person to undergo simple imprisonment for a term which may extend

    to thirty days and may further direct that the decree-holder or the purchaser be put into

    possession of the property.

    (2) Notwithstanding anything contained in subsection (1), where a judgment-debtor or

    my other person resists or obstructs the execution of a decree, the Court may direct the

    officer in charge of the police-station within whose jurisdiction the judgment-debtor or

    such other person resides or where the property to which the decree relates is situate to

    provide, the necessary police assistance for the execution of the decree.]

    INCIDENTAL PROCEEDINGS

    COMMISSIONS

    75.Subjctto such conditions .and limitations as may. be prescribed the Court may issue a

    commission-..

    (a)to examine any person ;

    (b)to make a local investigation;

    (c)to examine or adjust accounts; or

    (d)to make a partition.

  • 76. (1) A commission for the examination of any person Commiss1on~ may be issued to

    any Court (not being a High Court) situate in a Province other than Province in which the

    Court of issue is situate and having jurisdiction in the place in which the person to be

    examined resides.

    (2)Every Court receiving a commission for the examination of any person under

    subsection (1) shall examine him or cause him to be examined pursuant thereto, and the

    commission, when it has been duly executed, shall be returned together with the evidence

    taken under it to the Court from which it was issued, unless the order for issuing the

    commission has otherwise directed in which case the commission shall be returned in

    terms of such order.

    77. In lieu of issuing a commission the Court may issue a Letter of~ letter of request to

    examine a witness residing at any place not request within [Pakistan].

    78.2[Subject to such conditions and limitations as may be prescribed], the provisions as

    to the execution and return of come by foreign missions for the examination of witnesses

    shall apply to commission issued by [or at the instance of]

    (a)Courts situate beyond the limits of 2[Pakistan and established] or continued by the

    authority of 3* * * 4[the

    Central Government5 * * *], or

    (b) * * *

    [(c) Courts of any State or country outside Pakistan.]

    PART IV

    SUITS IN PARTICULAR CASES

    SUITS BY OR AGAINST [THE GOVERNEMNT] OR PUBLIC OFFICERS

    IN THEIR OFFICIAL CAPACITY

    79. * * * In a suit by or against the 2Government) the authority to be named as plaintiff

    or defendants as the case may be, shall be-

    (a) in the case of a suit by or against the Central Government, Pakistan];

    (b) in the case of a suit by or against a Provincial Government, the Province; and

    80.-(l) A suit may be instituted against the Government or against a public officer, In

    respect of any act purporting to be done by such public officer in his official capacity,

  • after the expiration of two months next after notice in writing has been delivered to or left

    at the office of-

    (a) in the case of a suit against the Central Government, a Secretary to that Government;

    (b) (I) In the case of a suit against the Provincial Government other than a suit relating to

    the affairs of a Railway, a Secretary to that Government or the. Collector of the District;

    and

    (ii) In the case of a suit against the 8[Federal Government] relating to the affairs of a

    Railway, the General Manager of the Railway concerned, and in the case of a public

    officer, delivered to him or left at his office stating the cause of' action, the name,

    description of place of residence of the plaintiff and the relief which he claims ; and the

    plaint shall contain a statement that such notice has been so delivered or left.

    (2) Where any such suit is instituted without delivering or leaving such notice as

    aforesaid or before the expiration of the said period of two months or where the plaint

    does not contain a statement that such notice has been so delivered or left, the plaintiff

    shill not be entitled to any costs if settlement as regards the subject-matter of the suit is

    reached or the Government or the public officer concedes the plaintiff's claim, within the

    period of two months from the date of the institution of the suit:

    Provided that in a suit instituted without such notice, the Court shall allow not less than

    three months to the Government to submit its written statement.]

    81.In a suit instituted against a public officer in respect of any act purporting to be done

    by him in his official capacity-

    (a) the defendant shall not be liable to arrest nor his property to attachment, otherwise

    than in execution

    of a decree, and

    (b) where the Court is satisfied that the defendant cannot absent himself from his duty

    without determent to the public service, it shall exempt him from appearing in person.

    82.-(l) Where the decree is against '[the 2[Government]] or Execution against a public

    officer in respect of any such act as aforesaid, a of decree time shall be specified in the

    decree within which it shall be satisfied ; and if the decree is not satisfied within the time

    so specified, the Court shall report the case for 'the orders of the 3(Provincial

    Government].

    (2) Execution shall not be issued on any such decree unless it remains ununsatisfied for

    the period of three months computed from the date of such report.

  • SUITS BY ALIENS AND BY OR AGAINST FO1.ETGN RULES,

    AMBASSADORS AND ENVOYS

    83.-(1) Alien enemies residing [in Pakistan] with the permission of the [Central

    Government], an alien friends, may sue in the Courts [in the Provinces], as if they were

    [Citizens of Pakistan].

    (2) No alien enemy residing [in Pakistan] without such permission, or residing in a

    foreign country, shall sue in any of such Courts.

    Explanation.-Every person residing in a foreign country the Government of which is at

    war with 2[or engaged in military operations against] 3[Pakistan], and carrying on

    business in that country without a [license in that behalf under the hand 4* * * of a

    Secretary to the 5[Central Government] shall, for the purpose of subsection (2), be

    deemed to be an alien enemy residing in a foreign country.

    84.-(1) A foreign State may sue in any Court [in the Province]:

    Provided that such State has been recognized by the [Central Government]:

    Provided, also, that the object of the suit is to enforce a private right vested in the head of

    such State or in any officer of such State iii his public capacity.

    (2) Every Court shall take judicial notice of the fact that a foreign State has or has not

    been recognized by the Central Government].

    85.(1) Persons specially appointed by order of the Central Government at the request of

    the Ruler of any foreign State, or at the request of any person competent, in the opinion

    of the Central Government to act on behalf of such Ruler, to prosecute or defend any suit

    on his behalf, shall be deemed to be the recognized agents by whom appearances acts and

    applications under this Code may be made or done on behalf of such Ruler.]

    (2) An appointment under this section may be made for the purpose of a specified suit or

    of several specified suits, or for the purpose of all such suits as it may from time to time

    be necessary to prosecute or defend on behalf of the [Ruler].

    (3) A person appointed under this section may authorize or appoint perso